Delhi High Court
K.C. Rakesh vs Govt. Of Nct Of Delhi & Ors. on 28 November, 2016
$~41.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(C) No. 11219/2016
Date of decision: 28th November, 2016
K.C. RAKESH ..... Petitioner
Through Dr. J.C. Vashishta, Advocate alongwith
petitioner in person.
versus
GOVT. OF NCT OF DELHI & ORS. ..... Respondents
Through Mr. Devesh Singh, ASC for GNCTD.
Mr. K.K. Nangia, Advocate for Mr. Ram Kumar,
Advocate for respondent No. 2.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE CHANDER SHEKHAR
SANJIV KHANNA, J. (ORAL):
The issue whether Respondent No. 3 the North Delhi Municipal
Corporation was liable to pay interest on delayed payment of the
pensionary/retirement benefits was first raised by the petitioner in Original
Application No. 2521/2011. The prayer/claim for interest was dismissed by
the Tribunal vide order dated 8th August, 2011, the operative portion of
which reads as under:-
"11. That apart, from the material placed on
record it is evident that the retiral benefits of the
applicant could not be settled because the applicant
while working in MCD was appointed on the post of
Assistant Commissioner in KVS on 13.3.1996. He
was on probation and during the period of probation
his services were terminated/repatriated vide order
W.P. (C) No. 11219/2016 Page 1 of 5
dated 31.1.1998. He did not join the parent
department, i.e., MCD. Further the aforesaid period
when he was working in KVS was not regularized
and whether said period should be counted as
qualifying service for the purpose of pensionary
benefits. The order to that effect was passed on
8.2.2006, whereby the period w.e.f. 31.3.1996 to
16.12.1997 was treated as qualifying service in MCD
and the period from 17.12.1997 to 31.1.1998 was
treated as dies non. Further from the material placed
on record it is evident that applicant has also taken
House Building Advance (HBA) as well as scooter
advance. When he retired on superannuation on
31.3.2004 the substantial amount of HBA to the tune
of Rs.61463/- and a sum of Rs.13255/- on account of
scooter advance (vide letter dated 7.4.2005 and
5.4.2005 respectively, pages 50-51 of the paper-book)
were outstanding. Further from the perusal of the
document dated 10.05.2006 it is evident that the
recovery of the excess payment of pay due to shifting
of increment from 1.4.1998 to 17.5.1998 and in the
years 1.4.1999 to 1.5.1999, and in the years 2000,
2001, 2002 and 2003 was also required to be effected
from the applicant. It may also be relevant to mention
here that applicant did not join the parent department
after his termination/repatriation by the KVS for a
period of 103 days. The MCD has regularized this
period as leave period. The said issue was also settled
subsequently to his retirement. Thus, it cannot be
said that the delay in making the payment is wholly
attributable to the administrative lapse and not to the
applicant."
2. The petitioner had challenged this order before the High Court in
Writ Petition (C) No. 7637/2012, but was unsuccessful and the order of the
Tribunal was upheld vide order dated 24th April, 2013 observing as under:-
"5. From the above, it is seen that the petitioner
himself is responsible for the delay that has occurred
in settling the retiral benefits, as his period of working
W.P. (C) No. 11219/2016 Page 2 of 5
in Kendriya Vidyalaya Sanghathan was not
regularized. That could be regularized only with the
issuance of order dated February 02, 2006 by treating
the period between March 31, 1996 to December 16,
1997 as qualifying service and the subsequent period
of December 17, 1997 to January 31, 1998 as dies
non. Apart from that, certain advances taken by the
petitioner were required to be effected from the
petitioner. Thus, for certain justifiable reasons if the
delay has occurred, the petitioner would not be
entitled to interest on the payments from the date of
superannuation to the date of payment. Besides claim
filed beyond 3 years was ex-facie barred by
limitation."
3. After the aforesaid writ petition was dismissed, the petitioner filed
OA No. 1959/2014 once again praying for interest on belated/delayed
payment. This OA was dismissed by the impugned order dated 31st July,
2015 for several reasons, including the ground that the petitioner had
earlier raised the issue of payment of interest and the same was denied.
The earlier decision on the issue had attained finality.
4. The petitioner, who is now himself a practicing advocate, is present
in the Court along with his counsel. It is urged by the petitioner that the
claim of interest which was the subject matter of OA No. 2521/2011
related to nineteen years of service rendered by him as an employee of the
Municipal Corporation of Delhi, whereas the claim in OA No. 1959/2014
pertains to the petitioner's prior service of fifteen years in Delhi
Administration, i.e., Government of NCT of Delhi and, therefore, the
causes of action are different and separate.
W.P. (C) No. 11219/2016 Page 3 of 5
5. It is not possible to accept the said contention of the petitioner. The
petitioner was earlier an employee of the Directorate of Education, Delhi
Administration. Subsequently, on selection he was offered the post of
Assistant Education Officer in Municipal Corporation of Delhi. However,
initially the Delhi Administration was reluctant and did not relieve the
petitioner, which had prompted the petitioner to file the Civil Writ Petition
No. 759/1985. Pursuant to the interim order in the writ petition, the
petitioner was permitted to join as an Assistant Education Officer
Municipal Corporation of Delhi. He joined the said post on 4th April, 1985.
The Civil Writ petition No. 759/1985 was transferred to the Tribunal and
registered as TA No. 1109/1985 and was allowed vide order dated 29th
April, 1992 making the interim order absolute.
6. The petitioner finally retired as Additional Director (Primary
Education) from the Municipal Corporation of Delhi on 31st March, 2004.
At the time of retirement, controversy arose regarding payment of
pensionary benefits, with the Municipal Corporation of Delhi taking the
stand that the petitioner's past service in the Delhi Administration would
not be counted as qualifying service. The reason was that the petitioner had
not tendered his technical resignation, when he had joined pursuant to the
interim order passed by the High Court, which was made absolute. The
petitioner had then filed Civil Writ Petition No. 2251/2004, to seek the
benefit of service rendered by him with the Director of Education
W.P. (C) No. 11219/2016 Page 4 of 5
(GNCTD), which was transferred to the Tribunal and registered as TA No.
1438/2009. This TA was decided in favour of the petitioner vide order
dated 29th January, 2010.
7. Once the said order was passed, then the second question arose with
regard to payment of interest on delayed payments of retirement or
pensionary benefits. The said aspect was specifically raised in O A No.
2521/2011 and rejected for the reason recorded in the order dated
08.08.2011. Subsequent challenge in the Writ Petition (C) No. 7637/2012
was also unsuccessful. Principle of res judicata and constructive res
jundicata would apply. Even otherwise, the reasons given in paragraph 5 of
the order dated 24th May, 2013 in W.P(C) 7367/2012 rejecting the prayer
for interest would be squarely applicable to the present writ petition also.
8. Hence, the present writ petition has no merit and is dismissed.
SANJIV KHANNA, J.
CHANDER SHEKHAR, J.
NOVEMBER 28, 2016
VKR
